posted at 8:46 pm on April 6, 2012 by Allahpundit

“I don’t see where that advances anything,” he said of the questions. “Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen.”…

He said the lawyers presenting their cases are capable and don’t need guidance from the justices: “I don’t need to hold your hand, help you cross the street to argue a case. I don’t need to badger you.”…

“We have a lifetime to go back in chambers and to argue with each other,” he said. “They have 30, 40 minutes per side for cases that are important to them and to the country. They should argue. That’s a part of the process.

“I don’t like to badger people. These are not children. The court traditionally did not do that. I have been there 20 years. I see no need for all of that. Most of that is in the briefs, and there are a few questions around the edges.”

He hasn’t asked a question from the bench since 2006. Here’s my problem: Wouldn’t oral arguments be nothing more than a regurgitation of the briefs if the Court didn’t ask questions? He’s right about some of the justices using Q&A to help the lawyers “cross the street” — go look at how the liberals bailed out Verrilli early on last week when he was struggling — and the pace of the questioning is frequently ridiculous. According to an NYT piece published last year, from 1988-2008, the Court averaged133 questions per one-hour argument. No doubt part of the badgering is simply the Supremes having fun toying with the lawyers, but I’ve got to believe Q&A is a more productive use of their time than sitting there while people read from prepared remarks that the justices themselves could read in one-fifth the time. Turning oral arguments into a speech-making spectacle would reduce the process to something almost ceremonial, where the Court shows up and gives the parties a thrill by letting their lawyers have an hour in front of SCOTUS to blather. Although, as I think about it, maybe oral arguments are already largely ceremonial. With all the briefs they have to sift through and all the backdoor politicking that goes on during deliberations, it’s hard to believe that anything said during Q&A ever amounts to a gamechanger. I think arguments are chiefly a way for the Court to face the public rather than for the lawyers to face the Court. After all, if everything was done on paper, with the justices issuing momentous opinions without ever showing their faces publicly, it’d make their job as a check on democratic majorities even harder.

Speaking of bad ideas about the Supreme Court, here’s one that TNR is kicking around:

I’ve never liked the idea of term limits for members of Congress, because if a member outstays his or her welcome voters get the chance every two or six years to hire a replacement. But term limits for judges—not just Supreme Court justices—make a certain amount of sense when those judges are appointed. For all their clairvoyance, the Founders couldn’t possibly have anticipated the impact that longer life spans would have on lifetime judicial appointments…

Another problem is that longevity has made the Supreme Court confirmation process extremely partisan and contentious—the stakes are just too absurdly high. The era of bitter Supreme Court confirmation fights—some say the era of bitter partisan politics in general—began in 1987, when Democrats defeated Reagan’s nomination of Robert Bork. That was a quarter-century ago, and if Sen. Ted Kennedy, D.-Mass., hadn’t played it pretty rough (“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution,” etc.) then Bork, who turned 85 last month, would probably still be sitting on the Court.

Arguably the reason Bork never sat on the Court at all is precisely because the Senate knew he was looking at a lifetime appointment if confirmed. You might roll the dice on someone whom you know is limited to 15 years; if you’re worried that he might have, say, 35, the calculus is different. But never mind that. Imagine how much more of an unholy clusterfark presidential elections would be if we knew for a fact that a certain number of vacancies would open up on the Court in the next term. Imagine further that the judges whose terms were ending were part of the Court’s majority and that the election would therefore determine SCOTUS’s balance of the power going forward. Court appointments would become an enormous factor in the campaign, as much a proxy vote for two Supreme shortlists than for two visions of the presidency. And needless to say, any justice appointed by the winner would face tremendous political pressure to vote as expected. They already do, of course, but the uncertainty of vacancies opening up means no president is elected with any guarantee that he’ll get to remake the Court. Term limits would change that. If an appointee ended up voting differently than expected, it’d be a betrayal of a specific campaign promise on which millions of votes may have turned. If you think the Court’s politicized now, go ahead and give it an even bigger role in elections by tossing term limits in there. The countermajoritarian difficulty will be more difficult than ever.

Exit fun fact from Rasmussen: Just 15 percent of likely voters think the Court puts too many limits on the federal government compared to 30 percent who think it doesn’t put enough.

I think the Court pretty much has to have oral arguments and questioning to maintain good will – otherwise they look far too much like a government institution is allowed to do everything behind closed doors. They’re one of the least democratic parts of the Constitution, chosen only indirectly by the people at two removes (through the President and Senate). This is how it’s made palatable.

I think arguments are chiefly a way for the Court to face the public rather than for the lawyers to face the Court. After all, if everything was done on paper, with the justices issuing momentous opinions without ever showing their faces publicly, it’d make their job as a check on democratic majorities even harder.

A very astute observation, in part. Having argued a number of cases before the Texas Supreme Court and a few before the SCOTUS, I have no problem at all with the Justices machine gunning counsel with questions in high profile cases like this one. It is important that the issues and arguments in such cases get as much public exposure as possible, and they will through contentious questioning by the jurists.

My problem with such an approach is when it is done in the run of the mill cases, where indeed some Justices feel that it is their mission in life to make the “lowly” lawyers appearing before them look foolish or unprepared, when neither is hardly ever the case. I fully agree with Justice Thomas here, that the Justices should let counsel at least have about 15 minutes to present argument before breaking in, if at all. But, I have argued cases where either my opposing or me were interrupted in argument right after, “May it Please the Court” . . . Actually it’s very rude and unnecessary.

I disagree, I think there should be term limits on Supreme Court and all federal judges. I also think should be term limits on congress and all federal employees should work on a contract bases, renewable every five to ten years.

We just have too many people who see government as a life time occupation. I also think it really is troublesome in congress where seniority reigns. The reason these old geezers keep getting reelected is because the people in that district or state (in the case of the senate) want to keep getting hand outs by electing a guy who will get some plum spot on a committee just because they have been there forever. That temptation has to be done away with, and term limits is the way.

Funny posts. One thing that still puzzles me after all these years. What exactly did Justice Thomas do that was sexual harassment? I never saw anything bad during the hearings. Oh, and I noticed little Anita Hill never did get married. I wonder if she has “issues”?

Funny posts. One thing that still puzzles me after all these years. What exactly did Justice Thomas do that was sexual harassment? I never saw anything bad during the hearings. Oh, and I noticed little Anita Hill never did get married. I wonder if she has “issues”?

Here’s my problem: Wouldn’t oral arguments be nothing more than a regurgitation of the briefs if the Court didn’t ask questions?

Partly, but the problem is that a lot of the justices/judges like the sound of their own voices. We have a precious few minutes to put emotion, passion and animation into our arguments that can be lacking in briefs. Think of a classic courtroom drama with a soaring closing argument. Then, think of that being reduced to paper and handed to the jurors instead.

Sometimes, you can’t even finish your first sentence before you are interrupted by a justice/judge and the important thing to remember is that most of the time, the j/j’s already have a good idea of how they are going to rule by the time they hear oral arguments. They and their law clerks have been reading filings, briefs, and memos on the case for months.

Thomas lets the parties make their cases. I actually think it is a sign of courtesy and humility. When you are only given 30 minutes — as it is in many cases — you really don’t want Justice or Judge Windbag pontificating endlessly and eating into your time.

Lastly, the disruptions can take a toll on counsel. They throw you off stride and bring you into areas that can oftentimes be totally non-germane to the instant case and aren’t even addressed in the court’s decision later. Understand, of course, many j/js love to do this. They love to try to throw off those that are arguing before them. They want to keep them off balance. There is an element of sadism-king complex.

I find it funny that Allahpundit disagrees with Thomas. Meaning no offense AP, but CT is correct. No value added from the arguments, and CT’s attitude and demeanor gives the court less of a circus appearance. Kagan, Sotomayor, Kennedy and Ginsburg were embarrassing in their questioning, proving that it is better to be thought a fool, than to open ones mouth and prove it.

I don’t know, Clarence. I’ve listened to a few of the oral arguments. I don’t remember the case, but in one, the counsel for what was the liberal side…imagine a Valley Girl whining at an Occupy rally about how education should be free. That was the tone I remember.

The oral argument process is pretty funny. The lawyer begins their speech, gets a couple minutes in, a justice interrupts with a question, and from then on it’s question, answer, question, answer, question, answer, …, time.

I always wonder if the lawyers write out a full hour-long speech just to read 5% of it.

“This is not real reform. You’re going to be forced to buy health insurance from a company that’s going to take on average 27 percent of your money so they can pay CEOs 20 million dollars a year…and there’s no choice about that. If you don’t buy that insurance, you’re going to get a fine. This is a bill that was fundamentally written by staffers who are friendly to the insurance industry, [endorsed] by Senators who take a lot of money from the insurance industry, and it’s not health care reform. And I think it’s too bad that it should come to this…I’d kill the bill entirely.”

– Howard Dean, December, 2009

“I do believe that it’s likely the individual mandate will be declared unconstitutional. [Justice Anthony] Kennedy will probably side with the four right-wing justices. But I’d be very surprised if they — I think Kennedy will switch sides and it will be 5-4 in favor of severing that finding from the rest of the bill. The question is going to be, is this individual mandate question — can that be considered separately from the rest of the bill? And I think it will be.”

The premise of most arguments are wrong-headed. All the problems rest upon the bosom of an ample federal government and large hindquarters in the judiciary. Everyone wants to do more; when really they should be restrained like a bad girl at a fetish party. Sex sells, you all buying yet?

Just look at the amount of litigation or even just at marriage/divorce. What business is it of the Courts? More is less efficient. Like Thomas says and I said the other day, questioning is recent. There was a time when there were only arguments. I believe Rhenquist popularized the questioning, though I may be incorrect. Though it does show stupidity like Breyer, it should not be necessary. You put forward your case. What reason is there to show up and within the first sentence you are interrupted and never finish? E-mail questions. Save money on a building and driving, WORK-FROM-HOME-SCOTUS.com. I don’t mind questions, but the present way that is done seems absurd.

Less Congress, Less court cases, less nuances to argue over. Just effin live. They should throw out probably 50% of the cases they currently accept, they being the entire A3.